Violation of Stay - Pro Se Filing, Chapter 7

[Jolene]

Hello, I am wondering if anyone has info about automatic stay violation, but here's some background first. Filed chapter 7 pro se on November 23, 2009; had 341 hearing on December 18, 2009 (very easy!); on December 24, 2009, received notice of motion for relief from stay from our mortgage company for a totally different case in another state; December 26, 2009, received notice of service of motion for relief from automatic stay (but still not the actual motion), this time applicable to us. We filed an objection on the grounds that we had not been served, and moved for the motion for relief from stay to be dismissed. While we waited for our hearing, the attorney for the mortgage company asked us to come outside the courtroom. He proceeded to ask us questions about out late payment. We took care not to answer his questions. Then he said that "(Company name) wants this brought current. How do you intend to do that?" My husband told him in no uncertain terms that we were not discussing this with him, and we went back into the courtroom. His final comment was, "Well, you can talk to the judge!" The judge granted us our dismissal, even though the attorney asked to have it postponed. So we won our objection, and are still under stay, but I know the attorney violated the stay, willfully! Have any of you experienced this? I would like to file a motion for sanctions for violation of automatic stay, just so the court knows the underhanded thing that was done, but I don't really want to get into a war. Any thoughts?

[StartingOver08]

What dismissal did the judge grant you?

[tigergem]

Oh so... trying to understand what happened here... the attorney tried to corner you in the hallway to collect the arrearages? And that attempted collection action was a violation of the stay? And the judge dismissed their motion for relief from the automatic stay right after that? Wow. Yeah I can see that encounter in the hallway with the attorney would be frustrating, but me being me, I think I would let it be water under the bridge. Being pro se and all. I just want to get through mine as painlessly and stress free as possible. Stirring up a hornet's nest because of their attorney being a jerk in the hallway is not something little ol pro se me would want to take on. Make a note of it and if they are persistently idiots, maybe then, yeah, but for me, this instance, I would let it rest.

[justbroke]

How did the attorney violate the stay? Any court of equity highly encourages the plaintiffs and defendants to step outside the courtroom and "discuss" settling the issue before it comes before the Judge. My courthouse has conference rooms right outside the courtroom for this purpose, and I've used them before to confer with a creditor and to settle things with the Trustee, outside the courtroom.

Even outside a court of equity, like a criminal court, deals and things are always done outside the official walls of the court. I don't see any stay violation at all. (And, for full disclosure, I tend to think narrowly!)

[tigergem]

So - - justbroke -- just to clarify....you don't think the attorney "attempting to collect a debt" before the judge dismissed their motion for an automatic stay was a stay violation? Just curious. It seems to me that a pro se person kind of HAS to deal with this stuff, so I see a lot of gray area myself. But like I said, I wouldn't stress this particular instance if it had happened to me, anyway.

[justbroke]

Yes, that's what I mean. A person who is pro se, is the attorney of record. When they appear in court, they must be prepared to talk with and discuss things with the creditor's attorney, as if the debtor himself is an attorney.

I do not see any stay violation. I mean, the debtor was there in court, that day, to deal with a Relief from Stay Motion. Talking about payments and things, are on the table for such a motion hearing.

That the debtor decided to not speak with the opposing counsel, his his prerogative and I make no judgment about not speaking with opposing counsel. (I actually like that they refused to talk to opposing counsel, but still make no judgment on it.) The debtor was right, that the reason for the Motion Hearing was specifically around the defects in service of the Motion. The Judge was very much on his game to dismiss it on the spot. I would expect a new Motion for Relief to be filed soon.

[tigergem]

Very cool. Thank you for the clarification. I guess I am lucky. So far none of my creditors seem to be the least bit interested in my case. I hope they stay that way.

[Jolene]

What dismissal did the judge grant you?

The judge dismissed the mortgage company's motion for relief from stay and told them that they would have to refile because we were not served properly.

[Jolene]

How did the attorney violate the stay? Any court of equity highly encourages the plaintiffs and defendants to step outside the courtroom and "discuss" settling the issue before it comes before the Judge. My courthouse has conference rooms right outside the courtroom for this purpose, and I've used them before to confer with a creditor and to settle things with the Trustee, outside the courtroom.

Even outside a court of equity, like a criminal court, deals and things are always done outside the official walls of the court. I don't see any stay violation at all. (And, for full disclosure, I tend to think narrowly!)

The reason I felt it violated the stay was because we were not there to talk about arrearages, we were there for a motion for relief from stay. They were asking for the relief from stay so that they could talk about the arrearages, so obviously they knew that they couldn't. We would have been fine discussing the motion with him.

[HHM]

What did you expect?

I agree, I do not see a stay violation. After all, if you go into a chapter 7 BK with mortgage arrears, there is no mechanism in chapter 7 to get those caught up, so the other attorney was probably trying to determine if your goal is to keep the house or let it go. If it is to keep the house, then you need to pay the arrears.

Also, discussing the arrears is part of the MFRS; after all, if you would have said "yes, I can pay the arrears", the attorney would have then gone into court and asked the hearing be continued to a later date while you guys work out the details.

There is no stay violation when two sides discuss a matter in controversy. And no, it doesn't need to be limited to the "narrow" issue of the days hearings. Bank has the right to foreclose, you have mortgage arrears, and filed chapter 7 with no mechanism to cure. There really is nothing wrong with the opposing attorney asking about what your intentions are with the house and the arrears.

[justbroke]

The judge dismissed the mortgage company's motion for relief from stay and told them that they would have to refile because we were not served properly.

That is the proper thing for the judge to do. You should expect to see a "properly" served Motion for Relief from Stay (MFRS) soon.

The reason I felt it violated the stay was because we were not there to talk about arrearages, we were there for a motion for relief from stay. They were asking for the relief from stay so that they could talk about the arrearages, so obviously they knew that they couldn't. We would have been fine discussing the motion with him.

They were asking for the MFRS because you were in arrears. That type of Motion is not to "talk" about anything. It's about seeking court permission to allow the creditor to pursue their remedies, such as foreclosure, outside the bankruptcy court.

What are your intentions? Do you plan to cure the arrears? Do you have any sort of defense to a properly served MFRS?